July 31, 2018 Practice Points

Dismissal for Lack of Subject-Matter Jurisdiction No Bar to Motion for Discovery Sanctions Filed Before Dismissal

The most important lesson is to get the motion for fees filed prior to any dismissal of the claim.

By Whitney M. Antoine

Attorney fees pursuant to Federal Rule of Civil Procedure 37(a)(5)(A) may be ordered in a case where a judgment of dismissal for lack of subject-matter jurisdiction has been granted, if the motion for fees was filed prior to the dismissal.

In a case decided July 6, 2018, the district court issued an order granting attorney fees pursuant to a motion to compel, where the plaintiff’s claim was dismissed for lack of subject-matter jurisdiction. Rackemann v. LISNR, Inc., No. 117CV00624MJDTWP, 2018 WL 3328140, (S.D. Ind. July 6, 2018).

The defendants, LISNR Inc. and the Indianapolis Colts, filed a motion to compel plaintiff to produce documents and information. After considering the plaintiff’s argument, the court issued an order granting the defendant’s motion to compel. In its order, the court gave the defendants leave to file a motion for fees. The defendants filed their motion for fees pursuant to Fed. R. Civ. P. 37(a)(5)(A). The plaintiff’s claim was subsequently dismissed under Fed. R. Civ. P. 12 (h)(3) for lack of subject-matter jurisdiction.

The court stated that its lack of subject-matter jurisdiction over the plaintiff’s claim did not negate its jurisdiction over the defendant’s motion for fees. The court distinguished this ruling from W.G. v. Senatore, where the Second Circuit affirmed a district court’s denial of a motion for attorney fees when the motion for fees was filed after the case was dismissed for lack of subject-matter jurisdiction. W.G. v. Senatore, 18 F.3d 60, 63 (2d Cir. 1994). In W.G. v. Senatore, the plaintiff filed the motion for fees under a substantive statute and the motion was filed after the case was dismissed. Unlike the plaintiff in W.G. v. Senatore, the defendants in Rackemann v. LISNR, Inc. filed the motion for fees prior to the dismissal of the plaintiff’s claims for lack of subject-matter jurisdiction, and the defendants requested fees pursuant to a procedural rule rather than a substantive statute.

Rackemann v. LISNR, Inc. provides that a court has the authority to award attorney fees under Rule 37(a)(5)(A), even though a plaintiff’s claims are dismissed for lack of subject-matter jurisdiction after the motion for fees was filed. The most important lesson is to get the motion for fees filed prior to any dismissal of the claim.

 

Whitney M. Antoine is a 2019 J.D. candidate at Southern University Law Center.


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